AFL-CIO v. FEC decided Thanks to the reader for alerting me that the D.C. Circuit has just released this opinion, which begins:

Unique among federal administrative agencies, the Federal Election Commission has as its sole purpose the regulation of core constitutionally protected activity —‘‘the behavior of individuals and groups only insofar as they act, speak and associate for political purposes.’’ FEC v. Machinists Non-Partisan Political League, 655 F.2d 380, 387 (D.C. Cir. 1981). As a result, Commission investigations into alleged election law violations frequently involve subpoenaing materials of a ‘‘delicate nature TTT represent[ing] the very heart of the organism which the first amendment was intended to nurture and protect: political expression and association concerning federal elections and officeholding.’’ Id. at 388. At the close of such investigations, a Commission regulation has long required public release of all investigatory file materials not exempted by the Freedom of Information Act. In this case, the subjects of a now-closed investigation challenge the regulation as inconsistent with both the Federal Election Campaign Act and the First Amendment. We hold that the regulation, though not contrary to the plain language of the statute, is nevertheless impermissible because it fails to account for the substantial First Amendment interests implicated in releasing political groups’ strategic documents and other internal materials.

Judge Henderson (one of the three BCRA judges) issued a concurring opinion.

"Free Speech, Inc." See this essay by Lisa J. Danetz of the National Voting Rights Institute on corporate free speech rights. The issue may get some clarification in Nike v. Kasky, one of the cases remaining to be decided this term. I have been wondering whether footnote 5 of FEC v. Beaumont might play in the Nike decision. There, the Court writes: "Within the realm of [campaign] contributions generally, corporate contributions are furthest from the core of political expression, since corporations' First Amendment speech and associational interests are derived largely from those of their members, and the public in receiving information. A ban on direct corporate contributions leaves individual members of corporations free to make their own contributions and deprives the public of little or no material information." (Citations omitted)

"Court restricts input on campaign finance" See this A.P. report with a rather inaccurate headline, discussing the briefing order in the BCRA case.

More talk of a 4-4 tie on BCRA leading to a retirement delay See this Christian Science Monitor story.

-- 
Rick Hasen
Professor of Law and William M. Rains Fellow
Loyola Law School
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http://electionlaw.blogspot.com